What Is Spousal Abandonment?
Within a legal context, spousal abandonment refers to the deliberate abandonment of a spouse without the intention of returning. The abandoning spouse has severed all ties and responsibility to his or her family. He or she has, in effect, walked away from the family and all related financial obligations and support without a good reason.
Abandoning and failing to provide care for a dependent ailing spouse or minor children is considered criminal spousal abandonment. A spouse is also not free to refuse to support any children from the marriage. Legally, minor children must be provided for.
The courts will consider “just cause” for spousal abandonment, such as in the case of abuse, withholding of conjugal rights or financial support, or infidelity. This is called constructive abandonment. A spouse will not be forced to remain in such a situation, However, these claims must be proven in a court. And the abandoning spouse remains responsible for both child and spousal support.
A separation where one spouse moves into another residence as a possible prelude to a divorce is not spousal abandonment, as long as the spouse continues to honor his or her financial obligations to the family. A spouse who leaves the marital home after an argument and remains gone for days or even weeks has not legally abandoned the spouse if he or she returns. Spousal abandonment is a desertion without cause that continues for a specific length of time, usually one year.
Financial Effects of Spousal Abandonment
Both the abandoned spouse, as well as the abandoning spouse, will feel the financial effects of spousal abandonment.
A spouse who has been abandoned might face severe financial difficulties. Whether or not he or she has filed for a divorce, divorce laws in most states allow for the filer to request maintenance. In such a situation, the address of the abandoning spouse would have to be known. While the abandoning spouse has not given up any property rights, the abandoned spouse can use any or all of the property within the marital home, including selling it.
The abandoning spouse still has a claim on the marital home itself. Once spousal abandonment has been established, however, he or she should not expect to be able to return to the property without a problem. The abandoned spouse has a right to change any locks and make access difficult. He or she can also control what happens to the furniture and other items in the house.
Emotional Effects of Abandonment
One day, you and your spouse are celebrating an anniversary or enjoying a special dinner out. The next day, he or she leaves for work or runs errands as usual. The only difference is, he or she doesn’t return. After you have frantically determined that there has been no accident, you realize you have been abandoned. You probably have no idea why or what happened. Abandoning spouses can be extremely good at not revealing their plans.
The first reaction is probably utter disbelief as you wonder what happened. You never saw this coming. He or she seemed attentive and loving, and now you find yourself alone. It’s easy for self-doubt to become overwhelming.
Unfortunately, abandonment happens, and it is usually devastating. You go over every single moment of the past trying to understand where you went wrong. When there are no answers, you may find yourself sinking further and further into depression.
Spousal abandonment is all about loss. You need to allow yourself to grieve. A huge part of your identity was wrapped up in loving someone and being a spouse. Even if there were problems in the marriage, at least the spouse was there, at home. You were able to communicate your frustrations. That is no longer possible.
It will be difficult to deal with the emotional aspects of spousal abandonment on your own. If at all possible, find a sympathetic counselor to talk to. This will enable you to release a lot of the grief, as well as provide you with some desperately needed emotional support.
Then, work on the realities of the situation. Discuss your financial situation with an attorney. If your spouse has left you in dire financial straits, see if you can sue for maintenance for yourself and your children.
Spousal Abandonment and Divorce
These days, all states recognize no-fault divorces. Contrary to 50 years ago, it is no longer necessary to air the marital dirty laundry in public. However, spousal abandonment is the second leading cause of fault divorce.
A spouse can claim abandonment if the other spouse has left without discussion or any plans for support and payments for mortgages and other necessities. A divorce based on abandonment cannot be filed immediately following the act of desertion. Most states require that an entire year has passed since the abandoning spouse has disappeared from the marital home. If the deserting spouse returns home within that time period, the clock starts again from the beginning. It may also be necessary to prove that the abandoned spouse did not cause the abandonment through abuse, infidelity, or refusal to engage in conjugal relations. For that reason, some abandoned spouses may prefer to initiate a no-fault divorce.
Abandonment and Child Custody
Spousal abandonment frequently leads to child abandonment. However, it does not automatically waive parental rights. Courts recognize that biological parents have a fundamental right to see their children. With those rights come fundamental and legal obligations.
Regardless of the level of parental involvement, parents have a right to make decisions regarding their children, especially regarding medical and other important matters.
Courts are very hesitant to curtail or terminate parental rights, even in the case of spousal abandonment. To be considered an absent and uninvolved parent requires that said parent have no contact with the child anywhere from several months to a year. Missing a few visitations or support payments does not equal child abandonment. In some states, the time period can be up to two years. But this does not mean automatic loss of parental rights.
A parent has an obligation to care and provide for his or her children. When this does not happen, the custodial parent (usually the abandoned spouse) can petition the court for sole custody and termination of parental rights of the abandoning spouse and parent.
As in the case of “just cause” spousal abandonment, the custodial parent must provide proof that the child has indeed been abandoned, neglected, or abused. Once this happens, parental rights may be terminated, and the abandoning spouse and parent will no longer be responsible for the child’s financial support. Usually, courts do this only in extreme cases.
Spousal Abandonment and Property Rights
Property rights in cases of marital abandonment vary from state to state. While the abandoning spouse has not officially forfeited any property rights, he or she has lost the right to make decisions about any abandoned real and personal property. The abandoned spouse has the right of occupancy, which makes any negotiation regarding division of property difficult as the abandoning spouse has lost a great deal of bargaining power.
If the abandoned spouse has been paying all bills and mortgages, he or she can make a persuasive case that the abandoning spouse has lost all equity rights to the marital property.
How to Leave the Marital Home Without Abandonment
When a couple experiences marital problems, one or both of them may wonder if leaving the marital home constitutes spousal abandonment. However, there is a huge difference between abandonment and separation.
If a spouse voluntarily leaves the home following an agreed-upon separation, it is not spousal abandonment. Simply because a couple separates for a while to consider the state of their marriage does not affect the legal rights of either individual, and it is not grounds for divorce. The act of abandonment must cover a period of time, usually a year, and must be permanent. Storming out of the front door following an argument is not considered spousal abandonment.
Spousal abandonment is a lengthy process, where the abandoning spouse leaves for no reason and during his or her absence refuses to pay support. A spouse fleeing from violence and abuse is not considered to have abandoned his or her spouse.
Leaving the marital home, even legally, may affect future custody negotiations, however. If one parent has physically left his or her children for a considerable length of time, a court may not consider this person a fit parent and grant sole custody to the remaining parent.
In some states, even if a man remains in the same house but does not support his family, the court may consider this constructive abandonment and consider it as grounds for divorce.
There are times when a marriage irretrievably falls apart through no real fault of either party. The urge to just walk away from a bad situation can be strong. In the end, however, spousal abandonment can cause more problems than it may solve. If a marriage has reached the state where communication is no longer possible, a legal separation as a route to a divorce is invariably the better course of action.